Australian democracy not always by the ‘rule of law’

By Andrew L. Urban

In the context of the immigration debate Australia’s Prime Minister (and lawyer of renown), recently extolled the virtues of Australian democracy and its adherence to the ‘rule of law principles’, yet “the criminal appeal system in Australia has failed to comply with its obligations to apply the rule of law,” according to two legal academics, Associate Professor Bibi Sangha and Dr Robert Moles, both of Flinders University, who are calling for an inquiry into ‘abuse of process’ in the system.

“The requirement to ensure that persons accused of criminal offences receive a fair trial and that they also have the right to an effective appeal would hardly be contentious,” they say in a joint statement which claims that Australia is failing its human rights obligations “contained in the International Covenant on Civil and Political Rights which Australia ratified in 1980.”

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Sue Neill-Fraser prosecutor Ellis replies to journalist

Andrew L. Urban

Tim Ellis SC, then Tasmania’s DPP and the man who prosecuted Sue Neill-Fraser in 2010 for murder, addressed several aspects of his prosecution – in public. It’s rare that a prosecutor speaks in detail publicly about one of his cases – especially one that is contentious. It is instructive to revisit parts of that email exchange now, three years later.

In Tasmanian Times, May 5, 2015, Tim Ellis published an email exchange between journalist Susan Horburgh of the Australian Women’s Weekly and himself, in preparation for an article she was writing about the Sue Neill-Fraser case.  (It was published on July 27, 2015.) Horsburgh put some questions to Ellis; here is an extract from their exchange, together with relevant extracts from the trial transcript.

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Sue Neill-Fraser: winds of change favour Four Winds

By Andrew L. Urban

A sensational late summer day in Hobart on Wednesday, March 7, 2018 – which I spent on a yacht on the Derwent thanks to my brother and sister in law – can in hindsight be seen as a positive omen in the Sue Neill-Fraser case. The sun shone its light into the darkness of a case that has divided Tasmanians and perplexed mainlanders who had heard of it. It was yet another hearing in her quest for leave to appeal her 2010 murder conviction under (relatively) new legislation. (Hearing continues, adjourned to June 26, 2018.)

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Sue Neill-Fraser – latest appeal hearing dates (March 2018)

By Andrew L. Urban

Delays for a variety of reasons have stretched the time-line in the latest Sue Neill-Fraser appeal, since the first directions hearing, which was almost exactly a year after the relevant legislation was passed, two and a half years ago.

A winching expert witness (for Neill-Fraser) was unavailable to attend the hearings in October 2017. Since then, police have stated they have new and ‘substantial’ evidence and would call four new witnesses, in addition to cross-examining Detective Shane Sinnitt. It is understood the Crown intends to tender recordings the police seized earlier, through Detective Sinnitt during cross-examination. The footage is for a Seven Network true crime series.

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‘Learned friends’ learn little from errors

Andrew L. Urban

What went wrong? That’s the question that the criminal justice system does not often ask and therefore doesn’t answer when wrongful convictions are revealed.

 

Prevention is so much better than cure, especially in a legal system which deprives the convicted of resources and the voice to be heard. The resistance to learning from mistakes prior to trial is compounded by a resistance to correct them post conviction.

There is no self correcting mechanism in the criminal justice system, other than an imperfect, slow and combersome appellate process; there is no equivalent to consumer protection that is obligatory elsewhere. Keith A Findlay, co-founder of the Wisconsin Innocence Project argues this very clearly in ‘Learning from our Mistakes’:

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Survivors Guide to Prison – a movie as a movement

By Andrew L. Urban.

American filmmaker Matthew Cooke says of his 2018 film Survivors Guide to Prison: “This is not just a film, but also a movement. We hope to swing the pendulum on legislation. We want prison reform, specifically prosecutorial reform and accountability on all levels of law enforcement, bail reform, mandatory sentencing, and solitary confinement and restorative justice programs.”

Americans are the most imprisoned citizens in the world, according to the film, which reports that there are over 14 million arrested each year, “with total discretion given to police officers”. There are over 5,000 prisons in the US – more than colleges and universities.

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The costs of injustice

By Andrew L. Urban

She is wheeled into the clinical surrounds of the Supreme Court in Hobart in a wheelchair and positioned in front of the empty jury benches, facing the witness box. Sue Neill-Fraser’s demeanour is low key, her little smile vague. It’s October 2017 and she’s been in prison since her arrest more than eight years earlier, in August 2009, when she was a healthy 55 year old. Two prison officers escort her.

The public gallery is full of her supporters and the media. In front of them are the two costly barristers and their two expensive associates, the two instructing solicitors – and scattered around the court, the wage-earning court staff. Sitting in his elevated isolation is Judge Michael Brett, presiding over Neill-Fraser’s appeal. Well, not her actual appeal, her request for leave to appeal.

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Gordon Wood – convicted of murder in 2008, acquitted in 2012, suing the State in 2017/18

By Andrew L. Urban.

Gordon Wood is suing the State of NSW and the DPP for malicious prosecution. The trial was held in March 2017, before Justice Elizabeth Fullerton. Judgement is still awaited at time of writing (February 17, 2018)

Background :
Gordon Wood was convicted in 2008 of the murder of Caroline Byrne, whose body was found early morning on June 8, 1995, on the rocks at The Gap, a notorious suicide spot on Sydney’s Eastern coast. In 2012 the Court of Criminal Appeal set aside his conviction and entered a verdict of acquittal. The Chief Justice made it clear in his judgement that even the most basic elements of the case had failed to be established. “I am not persuaded that Wood was at The Gap at the relevant time.” He concluded that the verdict of the jury could not be supported having regard to the evidence.

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Lloyd Rayney & how tunnel vision blinds police

By Andrew L. Urban

The WA police defamed an innocent man by publicly naming him soon after starting their investigation as the only suspect in his wife’s murder. He was eventually (three years later) charged, tried and acquitted. Twice. He has now sued the State – and won. The killer is still at large. That’s what comes from pursuing a conviction instead of searching for the truth.

It is rare that a defamation case shines so strongly and tellingly on the infamous police investigation failures generated by what is known as ‘tunnel vision’. The clarity of the examination of tunnel vision in this case is the valuable by-product of the successful defamation action brought by Lloyd Rayney against the WA Government, which concluded in December 2017 with damages of over $2.6 million awarded to Rayney, who had been arrested for the murder of his wife, Corryn.

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Bare faced lawyers: confessions of the legal profession

Innocent people – at least 71 known*, the total unknowable – have been held or are stuck in Australian jails on lengthy sentences for murders or rapes they did not commit. This comes as no surprise to those who, like multi award winning journalist and legal historian Evan Whitton, consider the adversarial system Australia has imported from Britain a disaster for justice, nothing more than a permit for lawyers to operate as a cartel, in which truth is not the ultimate objective. Winning is.

Here, in a selection of extracts from Whitton’s infinitely researched and damning work, Our Corrupt Legal System (Book Pal, 2009), is the evidence – often in their own words: lawyers are trained liars.

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